Case Summary and Outcome

The Constitutional Court of Bosnia and Herzegovina held that republishing a defamatory article was not a violation of the right to freedom of expression as the victim had already received compensation for the injury to their honor and reputation. Two news outlets republished a tabloid article which alleged that a journalist was involved in a coup against the government of Republika Srpska. The journalist sued both news outlets separately, succeeding in the first case. The Constitutional Court found that it would be unjustified for a victim to get compensation twice for the publication of the same content and that it would hamper press freedom.

Facts

On August 26, 2018, Vladimir Kovačević, a journalist from Republika Srpska (a federal unit of Bosnia and Herzegovina), was attacked in an apparent attempted assassination. The direct perpetrators were later convicted for attempted murder, but those who ordered the attack remain unknown.

A few days later, on August 31, Informer, a Serbian pro-Government tabloid, published an online article titled “Crawling Coup d’État in Republika Srpska. They Don’t Want Elections, They Want to Topple the Government on the Streets” which alleged that Kovačević was part of a group organizing a coup d’état in Republika Srpska (RS) – one of the two entities of Bosnia and Herzegovina – against the RS government. On the same day, two media outlets from RS – Alternative Television LLC (ATV) and the public broadcaster Radio Television of Republika Srpska (RTRS) – reposted, verbatim, the article on their websites.

The article claimed that there was an impending “crawling coup d’état in RS,” and that as the opposition parties were weak and likely to lose the upcoming elections, there was a plan to seize power in RS through revolution and violence before the elections. It also claimed that the plan for the coup was supported and organized by foreign embassies – particularly USAID creating an atmosphere of support for the opposition and coup d’état through media payments  – and stated that “all of this is being done according to instructions from Sarajevo embassies with the media support that has already been secured through USAID.” It also referred to an informal citizens’ group, “Justice for David”, as one of the actors in the coup and said that “the opposition in Republika Srpska recently directed all of its activities toward one goal only – strengthening the ‘Justice for David’ group and providing media support to this project through sympathetic media.” The article compared the alleged coup to protests in Serbia in 2000, and claimed that the coup organizers’ intention was to rally society to defend against an alleged dictatorship of the President of RS, Milorad Dodik and the ‘criminal authorities’.

Kovačević was not named in the article, but was referred to as a journalist and a member of a group that supports the coup and of conducting journalistic activities in line with his political inclination and based on the money he received. The article claimed that the attack on Kovačević was fabricated and had been planned to incite citizens against the government: “the case of the attack on an opposition-leaning journalist serves the same purpose, to animate broader societal strata and to call for defense against the alleged dictatorship of Dodik and his party.” It also said that “it is known that this journalist recently received eighty thousand dollars from USAID for some kind of internet portal, and since that money was injected, these portals have been sprouting up like mushrooms after rain.”

ATV briefly published Kovačević’s denial in response to the article.

Kovačević sued RTRS and ATV for defamation and the violation of his reputation in two separate civil proceedings before the Banjaluka Basic Court (BBC).

In the case against RTRS, Kovačević’s claim was definitively upheld. Both the BBC and the Banjaluka District Court (BDC), as a second-instance court, held that the article (with its title and text) was defamatory and damaged Kovačević’s reputation, emphasizing that the media acted maliciously by portraying him in a negative context.

The RTRS lodged a constitutional appeal before the Constitutional Court of Bosnia and Herzegovina, but the court found no violation of freedom of expression, noting that the reposting of the article was male fide.

In the case against ATV and Nenad Trbić (an editor of ATV at the time), the BBC and BDC found no defamation and violation of Kovačević’s reputation. In this case, the Court held that the article was not defamatory because, despite containing inaccurate factual statements, it did not impugn Kovačević’s reputation and honor. The Courts accepted that the claim in the article that Kovačević had received USD 80,000 from USAID was false but held that such an assertion does not constitute defamation  as receiving money from USAID is neither illegal nor shameful.

Kovačević lodged a constitutional appeal with the CCBH, arguing that his rights under Articles 8 and 6 of the European Convention on Human Rights (ECHR) had been infringed.

Article 8 protects the right to privacy and family life and states that “1) Everyone has the right to respect for his private and family life, his home and his correspondence. 2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 6 protects the right to a fair trial.

Decision Overview

The central issue for the Court’s determination was whether, given that the outcome of one court proceeding was that Kovačević’s honor and reputation had been violated (and for which he had been awarded compensation for non-material damage), it is “justified to again determine a violation of honor and reputation and impose an obligation to compensate for non-material damage on each entity that merely republished the same text, as this could potentially involve a large number of media outlets.” [para. 12]

Kovačević argued that his reputation and honor were infringed and the judgment lacked adequate reasoning according to European Court of Human Rights standards and so his rights under Article 8 were violated. He also submitted that Article 6 was violated due to the unreasoned judicial decision and the inconsistency in judicial practice regarding the same legal issue. Kovačević submitted that the courts had not analyzed the disputed article as a whole, and had not considered the context in which the article had been published: the article as a whole conveys that he is part of a conspiratorial group responsible for a coup, and that his attack was fabricated and false. He stated that the assertion that he received money from USAID to perform his job and the claims that he is inclined towards the opposition parties and that he is part of a group intended to carry out a coup imply that he is dishonest and an unprofessional journalist.

Before setting out its reasons in this case, the CCBH reiterated that it had determined the appeal brought before it by RTRS where it had found no violation of freedom of expression. It noted that two cases concerned the same article published by Informer and shared by ATV and the RTRS.

In the present case, the Court held that the application was manifestly ill-founded and found no violation of Articles 8 and 6 of ECHR.

The Court held that there could not be a reputation violation in a separate case against a different media outlet for the same article. With reference to the European Court of Human Rights case Anatoliy Yeremenko v. Ukraine, it stated that “punishing journalists for reporting the statements of other persons would seriously jeopardize the media’s contribution to the public interest debate and would not be justified, unless there are particularly important reasons for doing so”. It added that “it would not be proportionate to the legitimate aim of protecting the defendant’s right to freedom of expression and the objectives of the [RS Law on protection against defamation] that the appellant, due to the same expression, in an unspecified number of separate proceedings, obtains compensation for non-material damages.” [para. 14]

Accordingly, the Court found there was no violation and rejected Kovačević’s constitutional appeal.